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the Theft by Selling-Proportionality Paradox

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by: Ryan • January 30, 2011 • no comments

Michael Rees referenced this issue briefly and in his unique fashion in his post from yesterday. I haven't written much about it, in part because the complexity is daunting. There is a problem that most people recognize as unfair, but it's a problem that has no analog in Oregon law. Quite simply, there's nothing else quite like it.

The problem arises out of the theft statutes that were drafted in such a way - I am guessing - in order to punish the "fence" more than the person who steals the property. While a person who steals property must take property worth more than $1000 to be guilty of a theft, the person who receives stolen property, knowing it to be stolen, is facing a felony even if the property is worth less than $500. And the person who sells stolen property is guilty of a felony regardless of its dollar value.

It's demand-side economics in reverse. If you take away the market for stolen property, you take away the incentive to steal it. That's the plan, anyway. Hasn't quite worked out that way, however.

The irony is, the people who are getting punished more harshly by the law designed to punish the fence are in fact the people who steal the property. If you take property worth $500, you are guilty of a misdemeanor but if you are found with the stolen property, you are guilty of a felony (theft by receiving) and if you return the $10 hand lotion to the store where you took it, in order to get a refund, you are guilty of a felony (theft by selling).

The Oregon Supreme Court recognized the absurdity of having one defendant guilty 3 times over for stealing one piece of property. Consequently, they ruled that all three types of theft are in fact, one theft: if a defendant is charged and convicted of stealing X, then it would be double jeopardy to charge him with selling X in a different county. If a defendant is found guilty of both stealing X and receiving X at the same time, the two guilty findings merge into a single conviction.

The proportionality problem arises when stealing X is a misdemeanor and receiving X or selling X is a felony. The prosecutor will simply not charge the defendant with stealing X, because the punishment is more severe if he just charges the defendant with receiving X. The most ridiculous example of this I'd seen was when the prosecutor charged the defendant with burglary, when the defendant went into a home and stole a laptop. But he didn't charge the defendant with theft by taking. Instead, he charged theft by selling weeks later. Had the theft by taking been charged, it and the theft by selling would merge, and the burglary and theft would be one criminal episode. By not charging a crime, the prosecutor hoped the punishment would be more severe. A defense lawyer who knows the law of criminal episodes could have seen through this and defeated the prosecutor's effort, but many don't.

Again, what makes this issue complicated is that there is nothing comparable in the law. It's not just that taking X and selling X arise from one criminal episode, even if weeks apart (though they certainly do). It's that they are alternative theories of the same theft, despite occurring weeks apart. State v. Cox, 336 Or 284, 293, 82 P3d 619 (2003)(A defendant who "took" and "received" the same property "committed a single offense of theft. . . .") See also State v. Turner, 211 Or App 96 (2007).

So what if the defendant is charged with taking X, but X is never found. He goes to trial and is convicted. A week after his trial, the defendant tries to sell X to a pawn shop. Does double jeopardy still prevent a second prosecution for theft by selling? I submit yes, under Cox, because it is a "single offense of theft" and he has already been convicted. In Cox, the theft-by-receiving occurred in a different county from the theft-by-taking, and while both acts were discovered before the original trial, but I don't see any reason that makes a difference. ("Consistently with that statute and the definitional statutes that it incorporates, a defendant may not be prosecuted twice for conduct that the legislature has defined as a single crime.")

The defendant in this hypothetical is not committing any crime that he hasn't already been convicted of. This is what makes this scenario absurd, like some sort of crazy time-travel story. In this theft-by-selling scenario, the defendant is committing a crime in April that he was already convicted of in March.

But . . . but . . . but. . . , you insist, he is now committing a new crime by selling it. No, not according to Cox. It is the "same crime" he was convicted of. It violates double-jeopardy to try him again. Like I said, there is absolutely nothing else like this in Oregon law.

Therefore, let's return to the situation where the defendant has committed theft by taking of merchandise worth $500. He is guilty of a misdemeanor. The crime is done. The property sits in his attic for a month, until it's discovered, and he is subsequently charged with a felony theft-by-receiving as well as a misdemeanor theft-by taking.

As mentioned, the two counts will merge. ("By making all conduct under ORS 164.015 a single offense, however, ORS 164.025 ensures that the number of thefts will depend on the number of times a person unlawfully deprives another of property, not on the number of different ways in which a person accomplishes a particular deprivation.") But the merger still leaves the defendant with a felony conviction when he had committed and completed misdemeanor theft.

Again, what makes this different than any other situation in Oregon law is that the defendant has committed and completed a single theft the moment he takes it. Holding onto it or selling it are not continuations of that theft. The theft is 100% complete. Yet somehow the completed theft is converted into a felony when he puts it into his attic. Not saying that crimes can't be exacerbated by what occurs later, but what normally happens is that the defendant does something to make it a different and more serious crime. Per Cox and Turner, that's not what happens when the stolen item is put into his attic. It's not a different crime.

It used to be that when alternative versions of the same theft result in two different punishments (i.e., a felony or a misdemeanor), the difference violates the constitutional requirement that punishment be proportionate to the crime. Article I, Section 16, Oregon Constitution; State v. Pirkey, 203 Or 697, 281 P2d 698 (1955), overruled on other grounds, Klamath Falls v. Winters, 289 Or 757 (1980).

The Pirkey court held:

The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *" Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.

Pirkey says "same identical offense." Cox says "same crime" and "same offense." Is there a difference?

The defendant's position should be, simply, that a misdemeanor theft by taking may be proportionate, or a felony theft by receiving of the identical property may be proportionate, but they cannot both be proportionate if they are defined as the "same crime." In the language of the Oregon Supreme Court, the two statutes cannot both "bear the appropriate 'comparative relation' to the severity of that crime." State v. Wheeler, 343 Or 652 (2007) (en banc).

The constitutional principle reflects - as the Oregon Supreme Court held in Wheeler - "the framers' concern was that the penalty imposed on a criminal defendant be 'proportioned' to the specific offense for which the defendant was convicted-that it bear the appropriate 'comparative relation' to the severity of that crime."

However, there's a wrinkle. Mr. Pirkey won on two separate and distinct grounds, equal privileges and proportionality. The EP theory on which he won was reversed by a case known as Klamath Falls. Because of the nature of the KF case, the proportionality argument was irrelevant and never raised. Therefore, the proportionality portion of the opinion was simply not overruled.

But in St v. Alvey, 204 Or App 681, 131 P3d 765 (2006), in which the pro se defendant had a situation identical to Mr. Pirkey's, the Oregon Court of Appeals wrote:

"According to defendant, the two statutes thus impermissibly conferred on the district attorney discretion to charge the same conduct as either a felony or a misdemeanor, in violation of state and federal constitutional guarantees of equal treatment. The trial court agreed and dismissed the indictment. The state now appeals, arguing that, although the Oregon Supreme Court previously had concluded in State v. Pirkey, 203 Ore. 697, 281 P.2d 698 (1955), that the state and federal constitutions prohibit such prosecutorial discretion, Pirkey has since been overruled." "The state is correct. City of Klamath Falls v. Winters, 289 Ore. 757, 781-82, 619 P.2d 217 (1980); State v. Van Hoomissen, 125 Ore. App. 682, 683, 866 P.2d 521 (1994)."

Alvey was a per curiam opinion, with the additional weakness that the defendant was self-represented. Alvey appears to implicitly hold - likely without the appellate panel realizing it was doing so - that it held that the proportionality portion of the Pirkey opinion was reversed by a case (KF) that had absolutely nothing to do with proportionality.

If Pirkey's discussion of proportionality was never overturned by the Oregon Supreme Court, the Court of Appeals can't do it. And in a situation, as here, where a misdemeanor theft is converted into a felony by creative prosecution, it would seem not only to apply but also require a ruling in favor of the defendant. But that's easy for me to say. The issue needs to go the Oregon Supreme Court, for them to say exactly if and how Constitutional proportionality limitations apply in this situation.

If nothing else, making this argument will allow you to reference both Back to the Future and Planet of the Apes in your memorandum.